Sheo Kumar Yadav vs Consolidation Commissioner & Others

Sharad Kumar Sharma, J

The brief facts as are involved in the present case are that the petitioner was appointed with respondent no. 2, i.e. Settlement Officer Consolidation, Haridwar, initially, by an order dated 02.09.1996. The initial order of appointment of petitioner as Chainman, was with certain riders, i.e. appointment is temporary, secondly it would cease to exist as soon as Mr. Suresh Chandra, Chainman, in whose place he was appointed is revived back to his services and further that he could be removed from services without providing any opportunity or without issuing any show cause. Under the said terms and conditions, the case of petitioner is that he continued to work with respondent no. 2 as a Chainman. It is not in dispute and also apparent from the initial order of appointment that it was for a period of 89 days, and the interpretation which could be given to the order dated 02.09.1996, would be that on the expiry of 89 days the said period of temporary appointment could not be continued for another period. If those three conditions given in the order of appointment do exist and contained clauses for removing the petitioner. The respondent issued an order on 13.05.1998, with another set of terms and conditions of appointment, that he would continue to function till a subsequent letter of appointment was issued to the petitioner, the argument of petitioner's counsel is that breaks of 89 days appointment was overridden by order dated 13.05.1998, wherein, continuity was provided to the services of the petitioner.

During the intervening period the Settlement Officer Consolidation had passed an another order on 11.02.1998, wherein, the appointment of the petitioner in place of 'Chainman', was continued as a Zeep Driver yet again for another period of 89 days as contemplated in the order dated 11.02.1998 (Annexure-9 to the Writ Petition). This order too contained a rider that the continuance of the petitioner on the post of Zeep Driver would be subject to the regular appointment to be made by the Directorate. In that eventuality, if any appointment is made by the Directorate of Consolidation, the appointment of the petitioner would automatically cease to exist. However, these conditions too never changed and ultimately by the order dated 13.05.1998, which was passed by the Settlement Officer Consolidation, the petitioner was permitted to continue under the new terms and conditions of appointment on the post of Zeep Driver, which never contended that it was for a specified period of 89 days or it was containing any other conditions except the condition to the effect that the appointment would be discontinued only in an event if a regular appointee joins into the service.

While the petitioner was working as driver under the strength of the order dated 13.05.1998 issued subsequently, the respondent had proceeded to pass an order on 28.08.1999, whereby, the Joint Director (Consolidation) had observed that as per the direction issued by the Directorate of the Consolidation dated 2.12.1996 a complete ban has been imposed on the appointment, which are made by way of an arrangement by making appointments for 89 days and in view of the aforesaid restrictions imposed by the Directorate on 02.12.1996, the impugned order dated 28.08.1999, was passed laying down the condition that no such further extension would be granted to those employees, who have been initially appointed on 89 days. It is under the garb of this order, the impugned order of termination was passed by the Settlement Officer Consolidation on 7.10.1999, holding thereof that since the initial appointment of the petitioner made in 02.09.1996 since being for initial appointment of 89 days it would cease to exist in the light of the order dated 28.08.1999 and thus the services of the petitioners was to be discontinued. The petitioner had challenged these two impugned orders dated 28.08.1999, as well as, 07.10.1999 in the present Writ Petition. The precise ground of challenge by the petitioner to the two impugned orders was that there was no exigency to pass such an order of termination under the light of the order/circular dated 28.08.1998 and also that the order of termination dated 07.10.1999, is not an independent exercise of power by the appointing authority and challenge was also from the view point that since the petitioner has continued to work since his initial appointment made in September, 1996, he ought to be permitted to continue and lastly, no opportunity of hearing was given to the petitioner and since the order of termination was resulting into ceasing of his appointment, which never had a condition of continuity of 89 days and discontinuation of his service it will have a civil consequences and he ought to have been provided an opportunity of hearing.

Another argument though not pleaded but it has been raised by the learned counsel for the petitioner during the course of argument and would also be relevant under the given set of circumstances of the present case, is to the effect that by subsequent order issued by the respondent themselves on 13.05.1998, it takes away the very nature of the initial appointment of the petitioner as initially made in the year 1996 for 89 days and such an order provides a continuity of service to the petitioner and it only contemplated a renewal when a regular employees joins. Since the said incident of regular incumbent coming into the services has never occurred, the petitioner would be treated to have been continuing on a regular basis.

At the initial stage when the Writ Petition was filed the Court granted an interim order on 01.11.1999 and under the strength of the said order the petitioner has continued into the services and is still working as driver with the respondent.

Having heard the learned counsel for the parties, and after going through the records filed before this Court, this Court is of the view that no doubt the initial appointment of the petitioner made in September, 1996 was initially for 89 days with certain conditions contained in it, but with the subsequent order dated 13.05.1998, the nature of appointment of the petitioner was given altogether a new complexion and the conditions, which was stipulated therein would rather override the terms of initial appointment of 89 days as made in the order of September, 1996, and in that eventuality, looking to the changed terms of appointment and the manner in which the petitioner has been continued to work since 1996, which gives him a right to be considered to be continued into the services because the eventuality, contemplated in the order of appointment dated 13.05.1998, it never arisen and new incumbent had never joined into the services ever since 13.05.1998 and also would be apparent that if the nature of appointment dated 13.05.1998 is interpreted since it would be given a lien to the petitioner to continue into the job, in that eventuality, if at all his services were to be dispensed with it could have been only after adhering to the principles of natural justice, which apparently was not complied with before passing the impugned order. Also considering the fact that by now petitioner has put in over two decades of service may be under the interim orders of this Court. Hence, this Court is of the considered view that the petitioner's appointment cannot be treated as to be an appointment for a period of 89 days and, hence, it would not be governed by the impugned order dated 28.08.1999 and it cannot be treated that his appointment was made for 89 days and if this is be so, if order of termination, i.e. 07.10.1999, if at all was required to be passed in a given set of contingency, it can have only after providing an opportunity to the petitioner, which is lacking in the present case.

Accordingly, the present Writ Petition succeeds and is allowed. The impugned order dated 07.10.1999 is quashed so far it relates to the second impugned order under challenge, i.e. 28.08.1999 the same would not be made applicable, so far it relates to conditions governing the service conditions of the petitioner.